Australian Executor Trustees Ltd v Ceduna District Health Services Inc

Australian Executor Trustees Ltd v Ceduna District Health Services Inc - [2009] NSWSC 48 - NSWSC 2009 case summary — Zoe

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E. If the answer to question D is yes, should [the plaintiff] recover the $20,000 paid to the St Paul's Multicultural Filipino-Anglican Ministry, which was made as an interim distribution of the estate? Background facts 4 Those questions arise for consideration in the light of the following facts and circumstances, which are set forth with attached supporting documentation in a series of three statements of facts. 5 The plaintiff's solicitors have made inquiries about the existence and identity of the Philippine and Australia Episcopal Church. No body or organisation going by or using that name would appear to exist. None has been found. The inquiries, however, have revealed that St Paul's Multicultural Filipino-Anglican Ministry, a congregation of the All Saints Anglican Church in North Parramatta, claims to be the same unincorporated association that called itself the Philippine and Australia Episcopal Church. If that entity were to be recognised as a residuary beneficiary under the will it would be entitled to receive approximately $300,000 representing one sixth of the residuary estate of the deceased. 6 The plaintiff's solicitors have received correspondence from various people in relation to the identity and existence of the Philippine and Australia Episcopal Church. Some of this correspondence is set out in the paragraphs that follow. 7 As will emerge, Reverend George Gayagay is a central figure in the circumstances relevant to the present inquiry. He was therefore contacted about the deceased's will by the plaintiff's solicitors shortly following her death. In a letter dated 30 June 2006, he advised the plaintiff's solicitors in the following terms: "Thank you ever so much for your letter re the ESTATE OF THE LATE DULCIE EDNA RAND. I noticed you have written me on the 5th April which I have not received if it was addressed to 12 Gregory St., Glendenning. We have moved residence from this address to the above present address. Your letter dated 9th of June was thus forwarded to us.

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Communion is in fact all about mutual relationships. It is expressed by community, equality, common life, sharing, interdependence, and mutual affection and respect. It subsists in visible unity, common confession of the apostolic faith, common belief in scripture and the creeds, common baptism and shared eucharist, and a mutually recognised common ministry. Communion means that each church recognises that the other belongs to the One, Holy, Catholic and Apostolic Church of Jesus Christ, and shares in the mission of the whole people of God. It involves practising a common liturgical tradition, and intending to listen, speak and act alongside one another in obedience to the gospel. In communion, each church acknowledges and respects the interdependence and autonomy of the other, putting the needs of the global fellowship before its own. Through such communion, each church is enabled to find completeness through its relations to the others, while fulfilling its own particular calling within its own cultural context. This does not mean, of course, that each church must accept every theological opinion, of follow every sacramental devotion or liturgical practice, characteristic of the other. Such a distinction, between the essentials in which we agree and the non-essentials which do not inhibit communion, is a vital part of life within the Anglican Communion, . . ." The Episcopal Church in the Philippines 17 The Episcopal Church in the Philippines began as a Missionary of the Episcopal Church in the United States of America. It became a Missionary Diocese in 1965. On 1 May 1990, with five constituent Dioceses, it was inaugurated as an autonomous Church Province within the Anglican Communion. The church's Constitution includes the following provision: " ARTICLE 1. OF THE CHURCH PROVINCE Section 1 . This Province of the Church, known as the Episcopal Church in the Philippines, otherwise known as the Philippine Episcopal Church, is a constituent member of the Anglican Communion, a Fellowship within the One, Holy, Catholic and Apostolic Church, of those duly constituted Dioceses, Provinces, and Regional Churches in communion with the See of Canterbury, upholding and propagating the historic Faith and Order as set forth in the Book of Common Prayer." The Anglican Church of Australia 18 The Anglican Church of Australia commenced on 1 January 1962. The Constitution of the church includes the following provision: "6. The Church will remain and be in communion with the Church of England in England and with churches in communion therewith so long as communion is consistent with the Fundamental Declarations contained in this Constitution". 19 The Anglican Church of Australia is currently divided into five Provinces including New South Wales and 23 Dioceses including the Diocese of Sydney. Since 1995 the Diocese of Sydney has been divided into five Regions, including the Western Region. 20 The most senior member of the clergy in the Province of New South Wales and the Dioceses of Sydney is the Archbishop of Sydney. The most senior clergy in each Region of Sydney since 1995 have been a Bishop and Archdeacon. Ministry in the Diocese of Sydney is regulated by the issue of licences, including an authority to officiate, by the Archbishop of Sydney. Reverend George Gayagay 21 The Reverend George Colal Gayagay was ordained in the Diocese of Northern Philippines of the Episcopal Church in the United States of America as a Deacon on 24 June 1970 and as a priest in 1971. His ministries from his ordination as a Deacon up to 7 October 1998 are described in a letter of that date from him to the Archbishop of Sydney. He and his family arrived in Sydney on 17 July 1991. He first lived at 85 George Street, Mt Druitt until 1993. He was unemployed for most of 1991 and 1992. In 1992 he competed a Graduate Diploma of Rehabilitation Counselling at the University of Sydney. He was awarded this Graduate Diploma on 6 April 1993. 22 In 1994 Reverend Gayagay worked as an underwriter with the AMP Society for three months. He later completed a cleaning course and worked as a cleaner at Minchinbury Hospital until 16 February 1995. For a few weeks after his arrival in Australia he conducted religious services according to the rites of the Episcopal Church in the Philippines in the double garage of his house at Mt Druitt. People of Filipino nationality attended these services. 23 In about August 1991 Reverend Gayagay had been issued with an Authority to Officiate to assist in the Parish of Ashfield by Archbishop Robinson. During this period until November 1991 he and some other Filipinos attended the 8.00am communion service at St John's Anglican Church, Ashfield. He regularly assisted in the communion service as well as sometimes presiding and preaching. The Authority to Officiate was terminated at the end of December 1991. For about three months from November 1991 to February 1992 he conducted religious services according to the rites of the Episcopal Church in the Philippines from his garage as before. People of Filipino nationality attended these services as well. 24 From about February 1992 until late 1995 Reverend Gayagay and 10 to 20 Filipinos were involved in St Luke's Anglican Church, Enmore. 25 On 16 February 1995 Reverend Gayagay commenced working as Chaplain on a part-time basis with The Mission to Seamen NSW, which is part of a worldwide missionary society of the Anglican Communion. He continued with this part-time ministry until 1998 when he was employed on a full-time basis. In July 1995 the Most Reverend Ignacio Soliba suggested to him that he begin exploring the possibility of starting a Filipino congregation having a dual membership with the Anglican Church of Australia and the Episcopal Church in the Philippines. As at August 1995 Reverend Gayagay was living at 12 Gregory Street, Glendenning and he was still living at that address in October 1999. For a few months from the end of 1995 until about Easter 1996 Reverend Gayagay and about 10 to 20 Filipinos attended services but did not preside at a Holy Communion service or preach. 26 From 21 April 1996 to 5 October 2002 Reverend Gayagay conducted religious services according to the rites of the Episcopal Church in the Philippines at St Alban's Anglican Church Hall, Rooty Hill. Apart from conducting religious services, he also provided pastoral care to people attending these services and other Filipinos. These activities, including printing and payment of the weekly licence fee for the use of the hall, were paid for from offertories. Throughout this period Reverend Gayagay maintained a Service Record Book, which recorded the type of service (Morning Prayer or Holy Communion), the attendance and number of communicants, and the amount of the offertories. A record of offertories and expenses was contained in a separate book. 27 In about October 1996, the business name Fil-Aussie Christian Fellowship was registered and a cheque account in that name was opened at the Mt Druitt branch of the Commonwealth Bank of Australia. In 1997 Bishop Soliba appointed Reverend Gayagay as Vicar to the Fil-Aussie Christian Fellowship. In a letter to the Right Reverend Brian King, Bishop of the Western Region, which was also copied to Archbishop Goodhew, Bishop Soliba requested Bishop King to conduct a confirmation service for the Episcopal Church in the Philippines congregation meeting at St Alban's Anglican Church Hall, Rooty Hill. On 5 October 1997 Bishop King conducted a confirmation service according to the rites of the Anglican Church of Australia with Bishop Soliba in attendance. On 20 September 1998 Reverend Dr Canon Claydon of the Anglican Church of Australia preached at the Holy Communion service. In a letter dated 17 May 2002 written by Bishop Soliba to the Most Reverend Dr Peter Carnley, the Primate of the Anglican Church of Australia, Bishop Soliba thanked him for his understanding and concern regarding the Filipino-Australian Christian Fellowship in Sydney. At that time the fellowship was under the Episcopal Church in the Philippines in accordance with a verbal arrangement with Archbishop Goodhew, and Bishop Soliba expressed his willingness to turn over the small congregation to the Anglican Church of Australia. 28 In June and July 2002 there were discussions between representatives of the Diocese of Sydney and Reverend Gayagay with respect to the transfer of Episcopal oversight to the Diocese of Sydney, and a change to the meeting place of the Fil-Aussie Christian Fellowship from St Alban's Anglican Church Hall, Rooty Hill to St Paul's Anglican Church, Harris Park. St Paul's Multicultural Filipino-Anglican Ministry since October 2002 29 On 22 October 2002 there was a thanksgiving service at St Paul's Anglican Church, Harris Park at which the Fil-Aussie Christian Fellowship was transferred to the Diocese of Sydney. Bishop Soliba and five other bishops of the Episcopal Church in the Philippines and Archdeacon Allen attended the service. The name of this ministry was changed from Fil-Aussie Christian Fellowship to St Paul's Multicultural Filipino-Anglican Ministry. 30 From then until early 2007 the St Paul's Multicultural Filipino-Anglican Ministry met at 11.00am each Sunday at St Paul's Anglican Church, Harris Park and since early 2007 has met at 11.30am each Sunday at All Saints Anglican Church, North Parramatta, which is another church within the Parish of Parramatta North with Harris Park. Reverend Gayagay conducts services according to the rites of the Anglican Church of Australia. With the exception that the rites used for religious services have been those of the Anglican Church of Australia, rather than the Episcopal Church in the Philippines, Reverend Gayagay has engaged in the same activities as priest of the St Paul's Multicultural Filipino-Anglican Ministry that he engaged in as priest of the Fil-Aussie Christian Fellowship. The St Paul's Multicultural Filipino-Anglican Ministry has always been a separate congregation of the Parish of Parramatta North with Harris Park and until early 2007 met separately from the existing congregation of St Paul's Anglican Church, Harris Park. That congregation worshipped at 9.00am each Sunday, and since early 2007 it has worshipped separately from the existing congregations of All Saints Anglican Church, North Parramatta, which have worshipped at 8.00am, 10.00am and 7.00pm each Sunday. 31 At the time of the inauguration of St Paul's Multicultural Filipino-Anglican Ministry, the Fil-Aussie Christian Fellowship account had a credit balance of approximately $4,000. From this credit balance some $2,500 was paid to the St Paul's Anglican Church Building Fund to carry out repairs to the St Paul's Anglican Church, Harris Park. On 18 December 2002 an account in the name of St Paul's Multicultural Filipino-Anglican Ministry was opened at the Commonwealth Bank of Australia at Mt Druitt. The Fil-Aussie account was closed and the funds standing to the credit of that account were transferred to the St Paul's account. The proceedings 32 None of the residuary beneficiaries in the will has indicated an objection to the plaintiff's application to the Court pursuant to s 63 of the Act since advice was given to them by letters dated 15 August 2008 that such an application was proposed. On 9 September 2008 the plaintiff's solicitors gave formal notice pursuant to s 63(11) of the Act to the Anglican Church Diocese of Sydney, St Paul's Multicultural Filipino-Anglican Ministry and to all of the beneficiaries named in the will. The Anglican Church Property Trust Diocese of Sydney and the Attorney General in and for the State of New South Wales appeared at the hearing before me and made submissions by their counsel. The plaintiff's solicitors have been informed by the plaintiff and other beneficiaries that the deceased has no next of kin as her husband, her parents, her grandparents and her brother predeceased her and she has no children or surviving aunts or uncles. The Anglican Church Property Trust 33 Having been served with the summons commencing these proceedings, the Anglican Church Property Trust ("the Trust") is "able to participate in the proceedings to some extent": see Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 82 ALJR 1425 at [65]. The Trust submitted in the first instance that the proceedings should be reconstituted by joining it, Reverend Gayagay as a representative of persons comprising the Philippines and Australia Episcopal Church other than himself, the Attorney General for the State of New South Wales and a person to represent the deceased's next of kin. Such an approach would have required an adjournment for the purposes of a reconstitution. That did not occur. The Trust proceeded to make substantive submissions in the proceedings in their current form. It is convenient to deal with those submissions first. 34 The Trust contended that different questions should be addressed and answered. It proposed the following questions: A. Did the deceased misdescribe the Fil-Aussie Christian Fellowship in cl 4(f) of the will?

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D. If the Fil-Aussie Christian Fellowship has not continued to exist, has the gift lapsed? 35 Extrinsic evidence is admissible in the construction of a will, and is admissible for the purposes of identifying persons and things to which a testator intended to refer: Re Tyrie, deceased (No 1) [1972] VR 168 at 186; Gerhady v South Australian Auxilliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 at 204-206. Where an institution and its address are named in a will, the address may be considered as being only for the identification of the institution and as having no other significance: Re Flynn, deceased [1975] VR 633 at 638-639. 36 The Trust submitted that the evidence in these proceedings demonstrated that there was no church known as the Philippines and Australia Episcopal Church of Glendenning. The Fil-Aussie Christian Fellowship, which as at 27 July 1997 was functioning as an Area Mission of the Episcopal Church in the Philippines, had been meeting for over 12 months at the St Alban's Anglican Church Hall, Rooty Hill. The name "Philippines and Australia Episcopal Church" was Reverend Gayagay's description of the ecclesial relationship of the Fil-Aussie Christian Fellowship to the Episcopal Church in the Philippines and the Anglican Church of Australia until such time as it became part of the Diocese of Sydney. 37 The Trust submitted further that the name "Philippines and Australia Episcopal Church" was given to the deceased by her brother Mr Rand through Mr Carter. It will be recalled that in December 1996 when asked by Mr Carter about what name to call his church, because the deceased wished to include it in her will, Reverend Gayagay suggested the name "the Philippines and Australia Episcopal Church": see par [10] above. The Trust submitted that the unincorporated association Fil-Aussie Christian Fellowship was the organisation that the deceased intended to benefit by the gift contained in cl 4(f) of her will. She intended the address "Glendenning, New South Wales" to be a means of identification only, being the church under the leadership of Reverend Gayagay who lived there, and for no other purpose. 38 The fact that the name and address of an institution have changed does not mean that it ceases to exist: Flynn (supra) at 636-639. Where for all practical purposes the activity and operations of an institution have been continued without change notwithstanding that the institution may even have been dissolved and succeeded by another, the institution will be regarded as not having ceased to exist: Public Trustee v Cerebral Palsy Association of Western Australia Ltd [2004] WASC 36; (2004) 28 WAR 496 at [5]-[21], [40]; Cram Foundation v Corbett-Jones [2006] NSWSC 495 at [27]; Australian Executor Trustees Ltd v Ceduna District Health Services Inc [2006] SASC 286 at [18]-[19]. 39 The Trust submitted that the evidence showed that the unincorporated association Fil-Aussie Christian Fellowship has continued to exist since 22 October 2002 notwithstanding its change of name to St Paul's Multicultural Filipino-Anglican Ministry and the changes to the place where it meets to St Paul's Anglican Church, Harris Park and All Saints Anglican Church, North Parramatta. The continuation of the activities of the Fil-Aussie Christian Fellowship after that date, the transfer of its funds from the Fil-Aussie account to the St Paul's account, and the agreement on essential matters between the Episcopal Church in the Philippines and the Anglican Church of Australia all serve to confirm that the Fil-Aussie Christian Fellowship has continued to exist since that date. Consideration 40 In my opinion the unincorporated association Fil-Aussie Christian Fellowship was the organisation that the deceased intended to benefit by the gift contained in cl 4(f) of her will. Moreover, the change of name to St Paul's Multicultural Filipino-Anglican Ministry, and the other changes described above, does not indicate that it has for any of those reasons no longer continued to exist. St Paul's Multicultural Filipino-Anglican Ministry is the successor to the Fil-Aussie Christian Fellowship, which was misdescribed in the will of the deceased as the Philippines and Australia Episcopal Church. The material contained in the document described as the Written Undertaking of Evidence from Reverend Gayagay to the plaintiff's solicitors explains, in what appears to me to be a most credible and convincing way, how the name in cl 4(f) of the will of the deceased was chosen. The history of the unincorporated association since then has not to my observation served to eradicate the existence of the intended object of the gift. The letter to the plaintiff's solicitors dated 21 September 2007 from The Most Reverend Ignacio C. Soliba, Prime Bishop of the Episcopal Church in the Philippines is strong evidence that supports this. 41 One of the constants throughout the period since prior to the date of the will of the deceased has also been the continued connection of Reverend Gayagay with the unincorporated association by whatever name it may have been known, and whatever its location may have been, from time to time. It is clear from all of the available evidence that he was and apparently remains a driving force, and a personality of considerable influence, in the Filipino community centred (although by no means exclusively) around Rooty Hill. That community was a constant source of parishioners and communicants in the congregations over which he presided or which he served. There is no evidence to contradict or to cast any doubt upon assertions such as those made by Priti Pasupuleti that "St Paul's Multicultural Filipino-Anglican Ministry (the "Ministry"), then under its former name, the Philippine and Australian Episcopal Church, was formally recognised as an Anglican ministry of the Sydney Diocese". These types of pronouncement from someone in the position of the Legal Officer of the Anglican Church Diocese of Sydney in the context of these proceedings is strong adjectival support for the continuity of the organisation and for the fact that the deceased's description of the beneficiary in cl 4(f) of her will was in fact a misdescription of the Fil-Aussie Christian Fellowship. Answers 42 I consider that the plaintiff would be justified in distributing the gift contained in cl 4(f) of the will of the deceased to St Paul's Multicultural Filipino-Anglican Ministry, a congregation of the All Saints Anglican Church in North Parramatta. It follows that I would answer the first question "Yes". It is unnecessary in the circumstances to answer the remainder of the questions. Miscellaneous 43 However, the Trust has raised the issue of who or what may be the appropriate person or body to give a receipt to the plaintiff. It had submitted, in the context of its original contention that the proceedings should be reconstituted, that I make a declaration that the St Paul's Multicultural Filipino-Anglican Ministry is the successor of the Fil-Aussie Christian Fellowship and that I order by way of scheme that the balance of the share of residue given by cl 4(f) of the will of the deceased, after payment of the plaintiff's costs, be paid or transferred to the Trust to be applied to the St Paul's Multicultural Filipino-Anglican Ministry for its general purposes. 44 At the time when those submissions were made the plaintiff, and those others who appeared before me, obviously did not have the advantage of knowing my views on the questions upon which the advice of the Court was being sought. It seems to me that in the events that have occurred, and in the light of the views expressed on behalf of the Attorney General, and also having regard to the plaintiff's preference, communicated in open Court through her counsel, in favour of an expeditious completion of this matter and the winding up of the estate, that I should invite the parties to consider these reasons for judgment and to give consideration to what should then occur. It may then be possible to dispose of a number of otherwise outstanding matters by consent. Orders 45 I answer the first question "yes". In the meantime I will in the circumstances do no more than publish these reasons for judgment and stand the proceedings over to a date suitable to the parties to be arranged in consultation with my Associate.

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